ILLINOIS POLLUTION CONTROL BOARD

July

26,

1983

In the matter of:

)

R82—19

PHASE

II RCRA RULES

)

ADOPTED RULE.

FINAL ORDER

OPINION OF THE BOARD

(by D. Anderson):

On August 18,

1982 the Board opened this docket for the

purpose of promulgation of Phase II RCRA regulations

in

response to the United States Environmental Protection

Agency’s

(USEPA’s) promulgation of interim final rules

allowing permit applications for new and existing hazardous

waste management

(HWM)

facilities

(47 FR 32,369, July

26,

1982).

These rules became effective on January 26,

1983.

Section 22.4(a)

of the Environmental Protection Act

(Act)

requires the Board to adopt within 180 days regulations or

amendments thereto promulgated by USEPA pursuant to Sections

3001 through 3005 of the Resource Conservation and Recovery

Act

(RCRA).

The Board previously adopted regulations allowing

Illinois to receive Phase

I interim authorization

(R8l-22,

Opinion and Order of February

4,

1982;

6 Ill. Reg.

4828).

Authorization was received on May 17,

1982

(47 Fed.

Reg.

21,043).

The Phase

I rules were amended to reflect amendments

to the corresponding federal rules

(R82-18, Order of January 13,

1983;

7 Ill. Reg.

2518, March

4,

1983)

In a related action the Board adopted regulations to

allow Illinois to receive authorization for an underground

injection control

(UIC) program (R81-32, Opinion and Order,

May 13, 1982;

6 Ill.

Reg.

12,479, October

15,

1982).

Author-

ization for this program has not yet been received.

The Board made two separate regulatory proposals in

order to comply with the mandate of Section 22.4(a).

On

March 18,

1983 the Board proposed to amend 35 Iii. Adm. Code

702 and 705, and to adopt 35

Ill. Adm. Code 703 and 704.

On

April

21, 1983 the Board proposed to amend Parts

700, 704,

720,

725 and 730.

The proposal appeared at

7

Iii. Reg.

4520, April

5, 1983 and at

7 Ill.

Reg. 6216, May 20,

1983.

The following table summarizes the status of the RCRA

and UIC rules:

The Board acknowledges the contributions of Morton Dorothy,

Administrative Assistant responsible for this rulemaking.

53-131

---

—2—

35 Ill.

Adm. Code

700

Outline

To be amended

702

Permits

To be amended

703

RCRA Permits

Proposed

704

UIC Permits

To be amended

705

Procedures

To be amended

720

General

To be amended

721

Listings

Amend Appendix H

722

Generators

No change

723

Transporters

No change

724

Final TSD Standards

Proposed

725

Interim TSD Standards

To be amended

730

UIC Standards

To be amended

The Board adopted a Proposed Opinion with the March 18

proposal.

The Proposed Opinion is withdrawn and replaced by

this Opinion.

Pursuant to Section 22.4(a)

of the Act this rulemaking

is not subject to the usual procedures for rulemaking under

the Act or Section

5 of the Administrative Procedure Act.

The Board nevertheless published a first notice proposal in

the Illinois Register and solicited comments.

On May 19,

1983 the comment periods on the two portions of the proposal

were consolidated.

The comment periods ended on June 20,

1983.

The Board received the following comments:

PC 1,

2

Secretary of State, Administrative Code Unit,

(ISL), April

28,

1983; May 31,

1983

PC

3

Committee for the Advancement of Responsible

Environmental Solutions

(CARES), June 1,

1983

PC

4

Illinois Environmental Protection Aqency,

(IEPA), June 20,

1983

PC

5

U.S. Environmental Protection Agency,

(USEPA),

June 20,

1983

53-132

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—3—

PC

6

Granite City Steel Division of National Steel

Corporation, Interlake,

Inc., Northwestern

Steel and Wire Company, Republic Steel

Corporation and United States Steel

Corporation,

(STL), June

20, 1983

Pc

7

Illinois Power Company

(IPC), June 20, 1983

PC

8

Secretary of State, Administrative Code Unit,

July

8,

1983

The public comments will be referred to by the abbrevia-

tions indicated.

In the case of CARES,

the steel companies

and Illinois Power, page numbers will be indicated.

For

example,

(STL 13) will mean page

13 of the steel companies’

comments.

On the other hand, for IEPA and USEPA, paragraph

numbers will be indicated.

For example,

(USEPA #13) will

mean paragraph 13 in the USEPA’S comments.

FEDERAL REGULATIONS

The proposal is current with federal regulations

appearing in the Federal Register on or before October 29,

1982.

The following amendments have been incorporated

(IPC 11):

35 Iii.

Adin. Code

47 Fed. Reg.

Part 702

4996

(November 23, 1981 through October 29,

1982)

15,306

27,533

32,369

41,563

Part 703

32,369

(1982 CFR plus July

1 through October 29,

1982)

32,372

Part 705

(No changes resulting from federal amendments)

Part 724

27,520

(1982 CFR plus July 1 through October 29,

1982)

28,627

30,446

32,349

46,277

The proposal to amend Parts 702,

704,

705,

725 ~.nd730

brings them up to date with the corresponding federal rules

as of October 29, 1982.

53-133

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—4—

Overview of the RCRA Program

Part 703 contains the RCRA permit requirement.

Together

with Parts 702 and 705 it provides for applications, public

participation and permit issuance.

Generally, existing

facilities obtained interim status by filing a Part A applica-

tion.

The Agency will call in Part B applications in order

to initiate actual permit issuance.

New facilities will be

required to file both Part A and Part B of the application.

Existing facilities may file voluntary Part B applications.

The Agency will review permit applications against the

operating standards of Part 724.

The Part 724 standards consist of two broad divisions:

1.

Subparts A-H contain rules generally applicable to

all HWM (hazardous waste management)

facilities;

2.

Subparts 1-0 modify and supplement these rules

as

applied to specific types of TSD

(treatment,

storage or disposal)

unit.

The regulated TSD units

fall into seven categories:

1.

Containers

(storage);

2.

Tanks

(storage and treatment);

3.

Surface impoundments

(storage and treatment);

4.

Waste piles

(storage);

5.

Land treatment

(also known as sludge application);

6.

Landfills

(disposal,

including surface impound-

ments and waste piles used for disposal);

7.

Incinerators

(treatment).

Exemptions from Part 724

Among the exemptions are the following:

1.

Underground injection

(S724.lOl(d);

2.

Publicly owned treatment works

S724.lOl(e);

3.

Small quantities

S724.lOl(g)

(1);

53-134

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—5—

4.

Farmers ~~724.101(g)(4)~

5.

Totally enclosed treatment facilities,

elementary

neutralization units and indoor wastepiles ~724.l0l(g) (5)

and

(6);

§724,290);

6.

Addition of absorbent materials

S724,lOl(g)

(10)

;

Requirements Common to All HWM

The following requirements are common to all HWM facili-

ties:

1.

USEPA ID number (~724.lll);

2.

Security:

surveillance, fence and signs

(S724.l14);

3.

Personnel training program,

job descriptions and

titles (S724.116);

4.

Located outside the 100 year flood plain

~724.1l8(b)

5.

Internal and external communications, fire extin-

guishers and water or foam

(S724.l32);

6.

Aisle space for emergency equipment (S724,135);

7.

Arrangements with local emergency units

(S724.137);

8.

Contingency plan describing the action of personnel

in certain emergencies

(~724.l52);

9.

A designated emergency coordinator

(S724.155);

10.

Manifest system (S724.l71);

11,

Operating record

(S724,173);

12.

Annual reports

(S724.l77);

13.

Financial responsibility

(S724.240)

53-135

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—6—

Financial Requirements

There are three types of financial requirements:

1.

Financial assurance for closure

(S724,243);

2.

Financial assurance for post—closure care

(~724.245);

3.

Liability for sudden and non-sudden accidental

occurrences

(S724,247).

Financial assurance for closure and post—closure care

may be conveniently discussed together, since a single

mechanism may be used (S724~246), All HWM operators must

give closure assurance,

but only operators of disposal units

must give post-closure care assurance.

Disposal units

include landfills, and piles and impoundments when it

appears that it will not he possible to remove all waste

residues on closure (S724,240)

The closure rules begin with an estimate of closure

cost “at the point in the facility’s operating life when the

extent and manner of its operation would make closure the

most expensive,

as indicated by its closure plan”

(S724.243).

This must be revised by the operator annually and whenever a

change in the closure plan increases the cost of closure.

Note that closure could range from removal of a few barrels

at a container storage area to closure of a hazardous waste

landfill costing millions of dollars.

Facilities with disposal units must estimate the post-

closure cost, which is,

in current dollars, the annual post—

closure cost estimate times the number of years post—closure

care will be required

(S724,444),

It must be changed annually

or when the post-closure plan

is changed,

Post—closure care

involves,

for example, maintenance of cover and contir~ued

groundwater monitoring.

The operator is required to give financial assurance in

an amount equal to the closure cost estimate and, for disposal

units,

the post—closure cost estimate,

This may be done

through a combination of the following mechanisms:

1.

A trust fund ~S724,243(a)

and 724,245(a);

2.

Surety bond guaranteeing payment into trust fund

S~724~243(b) and 72’L245(h);

3.

Surety bond guaranteeing performance or payment

into trust fund ~724.243(c)

and 724.245(c);

53-136

---

4.

Letter of credit which will obligate a financial

institution to fund a trust S~724.243(d) and

724.245(d);

5.

Insurance obligating the insurer to pay closure or

post-closure care costs at the direction of the

Agency ~S724,243(e)

and 724,245(e);

6.

Self-insurance by an operator or by its parent

corporation which meets

a financial test ESS724~243(f)

and 724,245(f).

The first four work together:

the operator could set

up a trust fund and pay part of the closure and post—closure

cost into the trust.

The rest of the financial assurance

could be given by a combination of bonds and letters of

credit payable to the trust,

Part of the assurance could

also be given with insurance, which does not involve a trust

fund.

Section 724,247(a)

requires the operator to maintain

insurance for sudden accidental occurrences in the amount of

at least $1 million per occurrence with an annual aggregate

of $2 million.

Section 724.247(b)

requires at least $3

million for non—sudden occurrences, with an annual aggregate

of $6 million.

Sections 724,247(c)

and

(d) allow the level

of required liability to be adjusted up or down at the

instance of the Agency or the operator.

Section 724,247(f)

allows self insurance under conditions similar to closure

assurance.

Requirements Not Common to All HWN Facilities

Some requirements vary depending on the type of HWM

facility.

These include the following, which will be discussed

at greater length below:

1.

Inspections;

2.

Waste Analysis;

3.

Special requirements for ignitable,

reactive or

incompatible waste;

4.

Design standards

(other than groundwater protection);

53-137

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—8—

5.

Groundwater

protection:

liner

design,

leak

detec-

tion and monitoring;

6.

Closure and Post-closure;

7.

Exemptions

from

groundwater protection and final

cover

requirements.

Inspec

tL On

The

general

inspection

requirements

require

a

writte~i

schedule

for

inspection

of

monitoring,

emergency,

operating

and

structural

equipment

and

security

devices

~724,l15(b),

The

operator

must

follow

the

schedule

and

maintain

a

log

~S724.l15(b)

and

(d).

Specific

schedules

and

types

of

inspection

are

specified

for

the

various

types

of

TSD

unit,

Inspections

include

both

routine

operating

inspections

and

inspections

during

construction

or

repair.

“Inspections”

are

carried

out

by the operator, not the Agency.

This

is

also

sometimes

referred to

as

“monitoring”,

to

be

distinguished

from

“groundwater

monitoring”,

which

is

a

separate

topic.

This

use

of

the

terms

“inspection”

and

“monitoring”

differs

from

the

usual meaning in Board

rules.

Examples

of

operating

inspection

requirements

include:

1.

Tanks:

Daily

inspection

of

overfilling

equipment,

pressure

and

temperature

guaqes

and

actual

liquid

level

weekly

~nsnect:,’~on

for

corrosion,

wet

spots

and

dead

vegetation;

complete

inspection

as

scheduled

by

permit

condition

(5724.

294)

2.

Surface

impoundments~

Weekly

inspection,

and

after

storms,

of

overtopping

controls,

for

sudden

drops

in

level,

for

liquids

in

any

leak

detection

system

and

for

erosion,

Structural

integrity

must

be

certified

by

an

enqineer

if

an

impoundment

has

been

out

of

service

for

more

than

six

months

~iS724

326(h)

1

3.

Piles:

Weekly inspections, and after storms, of

run—on/run—off and wind dispersal controls,

and

for liquids

in

any

leak

detection

system

or

leachate

collection system 5724~354(b),

4.

Land

treatment:

Weekly inspections, and after

storms,

of

run-on/run—off

and

wind

dispersal

controls

and for

liquids

in

any

leak

detection

or

leachate collection

system

~724~403(b)

53-138

---

—9—

5.

Landfills:

Weekly inspections, and after storms,

of run-on/run-off and wind dispersal contr9l

systems, any leak detection system and leachate

collection and removal system ~724,408,

6.

incinerators:

Continuous

monitoring

of

combustion

temperature,

waste

feed

rate,

“indicator

combustion

gas

velocity”

and

carbon

monoxide;

daily

inspections

for

spills

and

leaks;

weekly

testing

of alarms and

emergency

waste

feed

cutoff

(S724.447),

During construction, liners must be inspected for

uniformity,

damage and imperfections.

Soil-based liners

must be inspected for lenses,

root holes,

etc.

Synthetic

liners must be inspected for tight joints and the absence of

tears

~724.326(a),

724.354(a)

and 724,403(a).

Waste Analysis

The operator must obtain a detailed physical and chemical

analysis of any hazardous waste before he treats, stores or

disposes of it 1~724.ll3(a).

This must be repeated as

necessary to ensure that it

is accurate and up to date

~724.ll3(a)(3).

The facility permit requires a waste

analysis plan specifying the types of tests,

sampling methods

and frequencies at which the initial analysis will be reviewed

~724,113(b)i.

For off—site facilities,

the waste analysis

plan must also specify procedures used to inspect incoming

loads to ensure

that.

they

match

the

identity

of

the

waste on

the manifest ~724.il3(c),

This does not necessarily

require a chemical analysis of each load, unless the plan

calls for such

S724.113(c)

(2).

The

waste analysis

ru:Les

depart

from

the

norm

only

with

respect to incinerators (~724,44l),

Permit applications

require more detailed information on waste feed,

including

the heat value, viscosity and Appendix VIII hazardous

constituents

(35 Iii. Adm, Code 703,223 and 703,224)

,*

Throughout operation the operator

must

conduct sufficient

analyses to confirm that the waste feed is within the

physical and chemical composition limits specified in the

permit

S724

.441(b),

*part 721, Appendix H references 40 CFR 261, Appendix VIII.

The Board has adopted the actual text of this Appendix.

Codif1-

cation requirements forced the Board to change the name to

Appendix H.

53-139

---

—10--

~9~~able

and Reactive Wa~ta

General requirements for ignitable, reactive and incompat-

ible waste include the following:

1.

Protection from sources of ignition,

“No Smoking”

signs and all smoking and flames confined to

specifically designated locations;

2.

Precautions for extreme heat or pressure, toxic

gases and damage to

structural

integrity;

3.

Documentation from iit.erature search must be

included with the permit application

(8724.117).

Additional specific requirements for types of TSD unit

include the following:

1.

Tanks:

Protection of construction material from

wastes which are incompatible with construction

materials

(8724 .292(a);

washing between incompat-

ible wastes

(8724,299); exemption where wastes are

treated so as to no longer be reactive or ignitable

immediately after entry into tank

$724..298(a)(l)

(A));

buffer zone requirements

8724

.298(b);

exemption

for tanks to be used for emergency storage, as for

example a waste feed diversion from an incinerator

(8724,298(a) (3)1

2.

impoundments:

Authorization

for

treatment

in

impoundment

immediately after placement and for

emergency

use ($724~329),

3.

Piles:

Separation

from

other wastes by berm or

wall;

cleaning

of base between

incompatible

wastes

(8724.357).

4.

Land

Treatment:

Authorization

if

waste

is

iimaedi—

ately incorporated into the soil so it is no

longer ignitable or reactive (8724~381).

5.

Landfills:

Ignitable wastes may be landfilled in

containers

if usual precautions are

followed;

reactive

waste

is

prohibited

unless

it

is

treated

in

place

so it

is

no

longer

reactive

immediately

after

placement,

6,

incinerators:

No

special

requirements,

53-140

---

—11—

Design and Operating Standards

Other Than Groundwater Protection

The design standards center on different factors depen-

3.ing on the type of TSD unit.

The design and operating

rules closely related to groundwater protection are discussed

in the sections which follow.

The following are design and

operating rules

which

are not closely related to groundwater

protection:

1,

Tanks:

foundation shell

strength,

pressure control,

corrosion, over—filling controls and freeboard

($724,291)

2.

Surface impoundments

(storage):

freeboard and

dike integrity to prevent massive failure without

relying on liner

systems

$724,321(d).

3.

Waste piles

(storage):

Wind dispersal controls

S724.351(f)

4.

Land treatment:

the design is left pretty much

open, but the operator must make a “treatment

demonstration” showing that hazardous constituents

can be “completely degraded, transformed or

immobilized in the treatment zone”

S724.371(b)).

There are limitations on the growth of food chain

crops and the rate of application of

cadmium

($724,376)

5.

Landfills:

wind dispersal controls

(8724.401).

6.

Incinerators:

Performance

is evaluated by selected

“principal organic hazardous constituents”

(POHCs)

($724,442).

Incinerator must achieve 99.99

destruction and removal of POHCs.

Particulate

standard is 180 mg/dscm

($724,443).

Fugitive

emissions must be controlled ($724,445).

Groundwater Protection Program

The “groundwater monitoring and response program” has

three stages

(S724,l91):

1.

Detection monitoring program;

2.

Compliance monitoring program;

3.

Corrective

action

program.

53-141

---

--12—

In the facility permit the

Agency

specifies

which

programs apply

S724.l9l(b),

For a new facility this

should be a detection monitoring program.

If leaks are

detected during operation,

the permit should be amended to

require a compliance monitoring and/or corrective action

program, as will be

discussed

in

greater

detail

below.

The

general

groundwater

monitoring

program, applicable

to all three stages,

includes the following,

as specified in

the

facility

permit:

1.

A sufficient number of wells,

at

appropriate

depths

and

locations,

to represent background

water

quality

and

the

water

quality

at

the

down-

gradient

“point of

compliance”

specified

in

the

facility

permit

(S5724,195

and

724,197(a);

2.

Determination

of

groundwater

surface

elevation

($724,197 (f)

;

3,

Establishment

of

background

levels

8724.197(g);

4.

Sampling, analytical and statistical procedures

8724.197(d)

and

(h).

Detection Monitoring Program

The first stage of the groundwater monitoring and

response program is the “detection monitoring program”

($724,198).

This applies to everybody subject to the ground-

water monitoring requirements who is not in the compliance

monitoring or corrective action programs

(8724,191).

Some

existing facilities may initially he permitted with compliance

monitoring or

corrective

action programs.

The limitations

on applicability of the groundwater

protection

rules are

discussed below.

An operator subject to detection monitoring must monitor

for “indicator parameter&’,

specified in the facility permit,

which will “provide a reliable indication of the prese~-iceof

hazardous constituents in groundwater”

8724.198(a).

The

operator must determine groundwater quality at each monitoring

well at least twice each year,

and the groundwater f1~~rate

and direction annually

18724.198(d)

and

(efl.

If the detection

monitoring

program reveals a “statis-

tically significant increase” over background levels f~rthe

indicator parameters specified in the permit,

the operator

must:

53-142

---

—13—

1.

Notify the Agency

8724.198(h)

and

Li);

2.

Undertake additional sampling to establish back-

ground levels for “Appendix VIII hazardous constitu-

ents”

(see 40 CFR 261) 8724,198(h)

(1)

and

(2);

3.

Within

90 days,

submit a permit application for a

compliance monitoring program $724.l98(h)

(4));

4,

Within 180 days, submit an engineering feasibility

study for a corrective action program 8724.198(h)

(5).

The operator has two options which do not delay the

time limits for permit modification applications.

To avoid

the compliance monitoring and corrective action programs,

the operator may:

1.

Demonstrate that a source other than a regulated

unit caused the increase $724,198(i);

or

2.

Demonstrate an error in sampling, analysis or

evaluation,

Compliance Monitoring Program

The “compliance monitoring program”

involves a permit

modification which establishes a “groundwater protection

standard” in permits “when hazardous constituents have

entered the groundwater from

a regulated unit”

($S724.l92

and 724.199).

Establishment

of

the

“groundwater protection

standard” proceeds

by

four

steps:

1.

Specification of “hazardous constituents”,

from 40

CFR 261, Appendix VIII, which have been detected

in

the

uppermost

aquifer

and

which

are

reasonably

expected

to

be

in

or

derived

from

the

unit,

subject

to

a

demonstration

by

the

operator

“that

the

constituent

is

not

capable

of

posing

a

present or

potential hazard to human health or the environment”

(S724.193)

-

2.

Specification in the permit of a “concentration

limit” equal to (S724.l94)

:

A.

The background level at the time the hazardous

constituent is first specified in the permit;

B.

For certain constituents

(7 metals, selenium

and

6 pesticides),

a limit specified by rule,

unless the background is already over the

limit; or

53-143

---

C~

An a1terna~eia~:. e:ablished by the

Agency.

3.

A “point of

corn

‘‘~

cc

~

he downgradient limit

of cn~

u~rL o~

~ ~

3:

i~,5

,

This

is speci-

fied i

tv~ ~

t

oc. non~o ing ~og~am

also.)

4,

A

~co’~

~

cx

~

froi the time of

esta~lishnentof the ~andard

fot

a period of time

equal

t

t~c~ieive life of the facility

(including

time prior

t

pcrmi~ti.ng) plus the closure period,

subjuct t

e~’-er.

c

f the operator is still in

correctjv~.~tc

~

L~cend

(5724

196)

As an exam”l

ori~

consider a

landfill opened

2..

983

with hazardous

constituents fi~~t d~t

d

r g~oudwater ~..n

1985,

The

compliance period

n..l

9

t~uah1998, subject to

extension if the facilit

t~ t~.

n corrective action in

1998.

This

is based 0~

a

.

su~1pti~ns:that hazardous

constituents first cr0

e

tL

I

‘~ierwien the unit was

opened in 1970;

that

Lt

~

.

~ y...a1~ to reach groundwater;

and, that the linet

~‘opuci

a ~..tng~hen the landfill was

closed 13 years later

TI~u’~a 1~year plume is moving into

the groundwater, reaching greaudwater between 1985 and 1998.

The

~cornpliarcero~

at

r.g

~,

oçjrarn~ is a permit modifi-

cation which reguire~ thc

porc~

~o rnoni~orgroundwater to

determine whethet regu

n ‘orp~Iancewith the

groundwater protect

a)

If the

operator deteriu

t

t

cotion standard

is being exceed~I.a

cy

u~

te nust notify the

Agency and submi

a

porrnt~...

Jr

I

~

on a~p’icationfor a

“corrective action prograr

,

;b eat to the possibility of

showing a samp

‘~r

..rr~

F

5C11

e

1 Ye increase,

or

asking for ar~

1

2

.l39c~.) and

(j)

The ~corr~cti

which requite~

.±

~çc

from exceeding tFe

C( m?

~

a

..~

r

permit “by removiig

F

treating them in

p...

.

monitoring progrll

ness of the car~ea

~5

~4

2

d)

Corrective a

‘~i

an

a

and ~2 tnt. compliance

period, and beysra

r it

U:

1:1 d

groundwater protection

standard has not been exceedod for three consecutive years

$724.

200 (f)

a re

ir

t

modification

a

I~az-rau~constituents

spcc ~~cd in the

St

U’

rstrtue. ts or

A

groundwater

e :orstra

e

he

~ffective—

---

Closure and .Post.~~c!osure

The operator must close the facility so as to minimize

the need for

further maintenance and to minimize

the

escape

of

hazardous

constituents

(5724,211),

A

closure

plan

must

be

submitted

with

the permit application ($724,212).

The

operator

must

“treat,

remove

or

dispose

of”

a11

hazardous

wastes

within

90

days

after

receivinq

the

final

volume

of

waste,

and

complete

closure

within

:L80

days

(5724,213).

When

closure

is

complete,

the

operator’s

encineer

certifies

to

the

Agency

that

the

closure

plan has

been

executed

($724,215).

Disposal

facilities

~landfills, and piles or

impoundments

from

which

waste cannot be removed at closure)

must

have

a

post—closure

plan.

Post—closure

care

continues

for

30

years,

with

possible

reduction

or

extension

(5724,217)

Monitoring

and

maintenance

cont.lnues

Post—closure

use

must

not

disturb

the integrity of the final cover

5724,217(c).

A

disposal

facility must file

a plat and put a

notice

in

its

chain

of

title

(5724,219)

The

details

of closure are spelled out for

the

different

types

of

TSD

unit,

The operator

must

cover

a

landfill

so

as

to

$724.210(a)1:

1.

Function with minimum

maintenance;

2.

Promote drainage and minimize cover erosion;

3,

Accommodate

suhs:Ldence;

and

4,

“Have

a

permeab:LI;rt

1553

than

or equal

to

the

permeabii

..r

~m I ~uer systcr~

or

natural

subso~ls:present’~.

During

the post—closure period the operator must

($724,210)

:

1.

Maintain integrity of final cover;

2.

Maintain and monitor any leak

detection

system;

3,

Operate

the leachate collection system;

4.

Maintain

and monitor groundwater

monitoring

system;

5.

Prevent

run—on/run—off damage;

6.

Protect

and mainte:Ln surveyed

benchmarks.

---

For

TSD

units

other

than

landfills

the

idea

is

to

avoid

the

final

cover and

post—closure

provisions.

For

example,

for

an

impoundment,

the

operator

is

supposed

to

remove

or

decontaminate

all

“waste

residues”

on

closure

$724,328(a).

If

this

is

not

possible,

it

is

closed

like

a

landfill

$724.

328(b).

Groundwater

Protection

and

Post-closure

Care—-Exemptions

For

landfills,

groundwater

protection

dominates

the

design

and

operating

requirements,

The

same

is

true

for

piles

and

impoundments,

because of

their

potential

to

become

disposal

units.

However,

treatment

and

storage

units

escape

the

more

rigorous

groundwater

protection

and

post-closure

care

requirements:

1.

Containers:

A

base

with

containment

and

collection

system

for spills and

:Leaks;

removal

of

all

hazardous

waste

and

contaminated

containers

on

closure

($724,275

and

§724,278),

2.

Tanks:

All must

have

inner

liners

and

weekly

inspections, with removal of all hazardous waste

on closure

($724,297)

3.

Land treatment:

Operator must conduct “unsaturated

zone monitoring”, about

5

feet under the surface,

for principal hazardous constituents

(PHCs)

($724,278),

Operator

is

generally

exempt from

groundwater monitoring and full closure requirements

if no PHCs show up in the unsaturated zone.

4.

Incinerators:

Operator must remove hazardous

waste on closure,

Landfill Groundwater Protection Design

The basic landfill design requires:

1.

A

liner

“constructed

of

materials

that

prevent

wastes

from

passing

into

the

liner

during

the

active

life of the facility”

$724,40l(a)

I

2.

A

leachate

collection

and

removal

system

8724.401

(a) (2),

53-146

---

—17—

3.

Run—on controls designed for the peak of a 25-year

storm

$724.401(a),

4.

Run-off controls to collect and control a 24—hour,

25—year storm

8724.401(d)

(2),

5.

Groundwater monitoring ($724,190).

There

are

two

ways

around

this.

The

first

allows

the

exemption

of

the

facility

from

the

liner

and

leachate

collection

provisions

if

the

operator

demonstrates

that

alternative

design

and

operating

practices

and

location

characteristics

“will

prevent

the

migration

of

any

hazardous

constituents

to

groundwater

or

surface

water

at

any

future

time”

S724.401(b),

The

second

way

gets

the

operator

around the groundwater

monitoring

provisions.

The

basic

thrust

of

the

regulatory

program is to get everybody to design new landfills with a

double liner and leak detection system as follows.

These

landfills must:

1.

Be

entirely

above

the

seasonal

high

water

table

$724.

402 (a)

(1);

2.

Have

two

liners designed

so

as

“to

prevent

the

between the liners”

8702,402(a)

(2);

3.

Have a leak

detection

system

in

the space between

S702,402(a)

(3);

4,

Have a leachate collection and removal from above

the

top liner

(S724,402(a) (4),

and have run—

on/run—off controls

$724.401(d)

and

(e)I, as with

all landfills,

Surface Impoundment Groundwater

Protection

Design

Liner requirements for impoundments are similar to

those for landfills:

a liner with run—on/run—off controls,

but no leachate collection.

The impoundment must have a

liner which will prevent migration of wastes into the ~iner

during the active life

$724,321(a).

On closure all ¶~waste

residues”,

including any contaminated liner, must be r~moved

8724.328(a).

If not,

the remaining wastes

(not necessarily

hazardous) must be dewatered and covered like a hazardous

waste landfill

8724,328(a)

(2).

53-147

---

—18--

The operator can be exempted from the liner requirement

on a showing that alternatives will prevent migration at any

time in the future

The operator can be exempted from the groundwater

detection system

($724,322).

Waste

Pile

Groundwater Protection Design

The basic design for a waste storage pile is a liner,

a leachate collection system and run—on/run—off controls

$724,351

(a).

Liner design includes foundation requirements

$724.35l(a)

(1) (ii),

Leachate may not be allowed to exceed

one foot in depth inside the pile

$724,351(a)(2),

Waste

may be allowed to migrate into the liner

8724,351(a)

(1),

but the liner would have to be removed on closure, or remaining

wastes would have to be covered like a landfill

(8724.358).

Piles which are inside a building and protected from

precipitation are exempt if no free liquids are placed in

the pile,

and there is run-on protection and no reactions

producing leachate

(S724.350).

Piles may be exempted from the liner and leachate

collection provisions if the operator demonstrates no migra-

tion at any time

in the future 8724.351(b).

Piles may also be exempted from groundwater monitoring

if there

is a double liner with leachate detection between

and collection and removal from above the top liner (8724.352).

There is an exemption from groundwater protection

unique to piles if the waste

is periodically removed so the

liner can be inspected.

Such a pile must have a single

liner and a leachate removal system ($724,353).

53-148

---

--19—

RESPONSE TO CO~ENTS

PART

700

OUTLINE

OF

WASTE

DISPOSAL

REGULATIONS

§700,106

Effective

Dates

(STL 3,

IPC

50,

IEPA

29

&

40)

The Agency has indicated that it will request “final

authorization” of the RCR~program rather than “Phase II

interim

authorization”

(IEPA

29).

§700,106(d)

has been

changed accordingly.

Part 724 will become effective when filed.

However, by

its own terms, Part 724 applies only to facilities which

have RCRA permits or permits by rule

($724,103, IPC

50, IEPA

40),

The Board does not intend that the Agency should

review against Part 724 Chapter

7 facilities receiving

hazardous waste exempt from the RCPJ~rules

(IEPA 40).

The proposed effective date for Part 703 combined with

the renumbering of §700,105 to Part 703 would cause existing

facilities to lose interim status between the adoption date

of the Phase II RCR~rules and authorization of the RCRA

permit program.

The Board will avoid this unintended result

by making the interim status provisions of Part 703 effective

immediately

(IPC 50).

The prohibitions Subpart, which

repeats the statutory permit requirements and spells out

specific inclusions and exclusions will also be made immediately

effective,

In the absence of the specific exclusions, the

permit requirement of 521(f)

of the Act could be held to

apply to persons exempt from the federal permit requirement,

such as generators storing waste

for

less than 90 days

8703,123(a),

§700.501

Permits

(STL

5,

IPC 54)

TSD

units will be required to have Chapter

7 permits

only if they accept non—hazardous waste:

in other words,

possession of a RCRA permit does not exempt the unit f~om

the Chapter

7 permit requirement for non—hazardous waste.

Language has been added to make it clear that this

is not

intended as an expansion of the Chapter

7 permit requirement

to include units

which

would

fall

under

the on-site permit

exemption

(STL 5).

The Board has allowed the Agency to consolidate C?iapter

7

and RCRA permit applications in order to save time and money

for industry and the public

(IPC 54).

53-149

---

—20—

PART 702

RCRA

AND

UIC

PERMIT

PROGRAMS

§702.101

Applicability

(IEPA

#25)

The words “Part A” have been deleted from §702.101(c) (1)

(IEPA 25).

Permit applicants will be required to use Agency

forms for both Part A and B of the application whenever such

forms become available,

§702.103

Confidentiality

(USEPA #21)

The Board will reference the new trade secrets procedures

in the process of final adoption in R81-30 in addition to the

existing confidentiality procedures contained

in 35

Ill.

Adm, Code 101,107(c).

§702.106

Agency Criteria

(IPC

47)

Paragraph

(c) was intended as a finding by the Board

that Agency criteria met the definition of “rule” in the

Administrative Procedure Act.

However, it appears that it

is also subject to the interpretation that it is

a Board

regulation requiring the Agency to comply with the APA.

As

such the statutory authority would be questionable.

The

Board will therefore delete paragraph

(c)

(IPC 47).

§702.107

Permit Appeals

(STL 5, IEPA #26)

This section provides that, unless otherwise provided,

all actions taken by the Agency under the RCRA and UIC rules

are to be construed as actions on a permit application or

permit modification application.

The procedures of Part 705

apply,

and final actions are appealable to the Board.

For

example,

in §724,132,

the demonstration to the Agency that a

particular type of safety equipment is not required is to be

made by the operator at the time of the permit application,

or by way of an application to modify the permit.

Read

alone this section

could be interpreted to allow this demon-

stration informally to an Agency inspector,

or after an

enforcement action alleging

violation of a permit condition

based

on it.

These interpretations are contrary to the

general thrust of the regulatory program.

Certain Agency actions, such as those involving the

application of the proceeds

of a bond or an insurance policy,

would not necessarily involve modification of the permit.

They would more properly

be

construed

as actions on

the

bond

or insurance Contract,

The Board has added a sentence

recognizing that the Circuit Court should have jurisdiction

over these matters, rather than the Board

(STL 5).

These

53-150

---

—21—

are,

however,

to

be

distinguished

from

permit

modifications

which

raise

or

lower

the

amount

of required financial assur-

ance.

This section is not intended to prevent the Agency from

filing enforcement actions as provided in §702,109

(IEPA

#26)

Part 725 has been deleted from the list of Parts in

which the Agency’s actions are to be taken pursuant to Part

705 procedures.

Although the Board intends the Agency’s

actions with respect to interim status to be

in the nature

of permit actions,

and hence to be appealable to the Board,

the detailed procedures of Part 705 are not applicable

(IEPA

#26)

§702.108

Variances

(STL 7, IEPA #27)

If

the

language

of

a

Board

rule

itself

provides

for

either a delayed effective date, or sets a standard by which

the Agency can review the permit applicant’s proposed schedule

to come into compliance with the rule, then the Agency may

issue a permit with a schedule of compliance under Section 39(d)

of the Act without prior approval by means of a variance order.

Similarly,

if a Board rule specifically provides that the

Agency has discretion in its application, and sets

a standard

by which the Agency exercises its discretion, then the

Agency may issue the permit after making the required deter-

mination.

Otherwise, the applicant must obtain

a variance

in

a

separate

action

before

the

Board.

Section 702.108 applies only to persons with

RCRA

or

UIC permits, or applying for such permits,

Persons subject

to the regulatory programs, but not required to have such

permits, may apply for variances pursuant to the Board’s

general variance procedures,

Section 702,108(a)

applies only to “applicants”,

meaning

persons

who

have

a

permit

application

or

modification

application on file.

The Agency will need to have on file a

complete application or a permit file and a modification

application in order to adequately prepare its recommendation.

Section 702.108(b)

requires that the Agency recommenda-

tion be filed in advance of the variance hearing and that it

contain a draft permit condition,

The recommendation will

serve the function of the draft permit in the Part 705

procedures.

The Board’s variance procedures require that a hearing

be held if any person objects within 21 days of the filing

of

the

petition,

and

allow

hearings

at

the

Board’s

discretion.

This

is

equivalent

to

the

public

participation

at

the

Federal

level.

53-151

---

—22—

SectiOn 702.108(c)

explains that the Board’s action

will be to order the Agency to issue or modify the permit

pursuant to Part 705 procedures.

The Agency will apply the

Board’s Order as a part of the law applicable to the facility.

§702.110

Definitions

(USEPA #22—26)

The phrase “revoke and reissue, terminate or reissue”

has been added to the definition of “draft permit”.

This

language, found in 40 CFR 122.3, was deleted from the defini-

tion during the adoption of the UIC rules.

As is discussed in greater detail elsewhere,

the Board

intends to reserve to itself the authority to revoke permits.

However, to the extent the Agency has authority to effec-

tively terminate permits pursuant to permit modification,

its

action

will

take

the

form

of

a

“draft

permit”

and

will

proceed according to Part 705 procedures.

The definition of “permit” will include

RCRA

permits by

rule

(USEPA #24).

The references to interim status have been deleted from

the definition of “RCRA permit” in order to avoid any inter-

pretation that actual permits or permits by rule are to be

excluded from the definition (USEPA #25).

A

RCRA

permit

will be precisely that which is required by §21(f)

of the

Act.

§702.121

Who Applies

(IPC 48)

USEPA has issued a regulatory interpretation memorandum

concerning who must sign the permit application

(45 Fed.

Reg.

74489, November 10,

1980) (IPC 48).

The Board would

give such interpretation great weight in any dispute invol-

§702.123

Information Requirements

(USEPA *11)

40 CFR 122.4(d) (7) was amended to reduce the distance

requirement for topographic maps from one mile to 1/4 mile

(47 Fed.

Reg.

15306) (USEPA #11).

To preserve consistency of

units throughout these regulations, the Board has converted

this

to

the

metric

equivalent

of

402

meters,

53-152

---

—23—

§702.126

Signatories

(IPC 48)

USEPA has issued a statement of policy concerning who

must sign applications and reports under the equivalent 40

CFR 122.6

(1982) (45 Fed.

Reg.

52149, August

6,

1980)

(IPC

48).

The Board would give such interpretations great weight

in any dispute involving these questions.

§702.148

Duty

to

Provide

Information

(IPC

49, USEPA #12)

The

phrase

“revoking

and

reissuing

or

terminating”

has

been

added

to

the

list

of

relevant

information

which

the

Agency

can

request

of

the

permittee.

This

is

taken

from

40

CFR

122.7(h)(1982).

As

discussed

elsewhere,

the

Agency’s

authority

to

terminate

a

permit

on

its

own

is

limited.

However,

it

will

be

allowed

to

request

information to deter-

mine whether cause exists to file an enforcement action

before the Board

(IPC 49, USEPA *12).

§702.162

Schedules of Compliance (IEPA #7,

28, USEPA #13)

Schedules of compliance are to be placed in permits

only if the underlying Board regulation allows for delayed

compliance or if the applicant has obtained a variance from

the Board regulation.

§39(d)

of the Act allows such compli-

ance schedules,

but does not specify whether they can be

issued independent of a Board rule, variance or enforcement

order.

The overall structure of the Act provides for the

Agency to issue permits, applying Board regulations, and

sets up a general variance procedure to be followed by

persons who wish to deviate from the letter of the regula-

tions.

The interpretation given makes the RCRA provisions

consistent with the Act as a whole

(IEPA #7, #28).

The variance proceeding is separate from the permit

application or modification proceeding.

The Board has no

authority under the Act

to issue permits; rather, this power

is vested exclusively in the Agency

($39).

Following the

grant of the variance, the Part 705 permit procedures will

be followed to actually modify or issue the permit.

The

Board’s variance Order will be utilized by the Agency as a

part of the law applicable to the facility.

The Agency is

encouraged to submit the Board’s variance procedures with

the application for

RCRA

authorization

(35 Iii. Adm. Code

104)

(USEPA #13)

§702.164

Recording and Reporting (USEPA #14)

The following sentence, taken from 40 CFR 122.11(c)

(1982) has been added to §702.164(c):

“Reporting shall be

no less frequent than specified in the above regulations.”

53-153

---

—24—

§702.183

Modification

Modification may be initiated either by the permittee,

by filing an application to modify, or by the Agency, when

it comes into possession of information from which it can

determine that cause for modification exists.

The causes

for modification are set out in the following sections.

Whether initiated by the Agency or the permittee, the modifi-

cation proceeds by way of the Part 705 procedures.

The modification sections relate to grounds on which

the Agency can initiate modification,

They should not be

construed as limiting the circumstances under which the

permittee can request modification, or as

a defense defining

how far the permittee can stray from the letter of the

permit conditions.

The Agency controls the specificity of the conditions

of the permit

it issues~

To a certain extent the applicant

can affect this process by being more or less specific in

the application.

If some detail of the site or method of

operation is specified in the permit, then it is a violation

of the permit condition to alter this detail.

However,

if

the applicant wishes to adjust any detail in a permit, the

Agency must review the modification against the rules.

The

modification rules should not be construed as barring such

modification.

§702.184

Causes for Modification (USEPA #12)

Causes for modification include:

“material and substan-

tial alterations or additions to the permitted facility or

activity which occurred

after

permit issuance which justify

the application

of

permit

conditions

that

are

different

or

absent in the existing permit”

8702,184(a)),

This standard

comes

into

play

when

the

Agency

initiates

a

modification

because

of

alteration

without an

application

to

modify,

or

whenever

the

permit

is silent

on

some

detail,

If

the

permittee

modifies

without

an

application,

the

Agency

would

also

have

the

option

of

filing

an enforcement

action.

The

question

in

such

a

case

would

be

whether

the

modification

was

prohibited

by

the

language

of the

permit,

Board

rules

or

State

law.

To

protect

himself

from an

enforcement

action

for

violation

of

permit

conditions,

the

permittee

should

file

an

application

to

modify

prior

to any

construction

or

modifica-

tion.

The

permit

should

be modified so

as

to

reflect

what

the

permittee

is

actually

doing

without

consideration

of

whether

the

modification

is

“substantial

and

material”.

53-154

---

—25—

Causes for modification also include changes in the

regulations on which the permit was based $702,l84(c)

and

changes in compliance schedules

$702.184(d),

Modification and revocation are not clearly distinguished

in the federal regulations.

Because the State authority

is

divided between the Board and Agency,

greater care must be

exercised in delineating the two,

The causes for permit

modification

listed

in

§724,184(e)

may

cause

the

most

diffi-

culty because they would be used in situations in which an

enforcement action would also be appropriate.

These are

discussed below,

As

proposedr

§703,184(f)

contained

a

broad

statement

taken

from

40

CFR

122,L5(b)

(1)

to

the

effect

that a permit

could

be

modified

if “causes exist for revocation under Sec.

702.186,

and

the

Agency determines

that

modification

is

appropriate.”

This languaqe has been dropped because it

conflicts

with

§702,186, which

provides

that

it

is

the

Board

which

revokes

permits.

Section

703,184(f)

has been replaced with language

taken

from

40

CFR

122,15(b)

(2),

which

was

omitted

from

the

proposal.

This

provides

that

the

Agency

may

modify,

or

terminate

and

reissue,

a

permit

upon notification of

a

proposed

transfer,

In this situation

the

Agency

may

insist

on

a

new

application

and

deal

with

the

site

as

though

no

previous

permit

existed

(USEPA

#12).

§702,185

Facility

Siting

A

sentence

has been

added

to

Section

702.185 alerting

the

reader

that

certain modifications to the facility may

require site location suitability approval by local

govern-

ment pursuant to

§39.2

of

the

Act.

Expansion

beyond

the

boundary of

a currently permitted “regional pollution control

facility” would

require

such

approval

83(x)

and

39(c)

of

the Act.

Note that the term “facility” has

a different

meaning in this portion of the Act:

Expansion of a “T~D

unit” within an “HWM facility”,

as these

terms are used in

the RCRA rules, could require such approval, since a “~rSDunit”

could itself meet the definition of a “regional pollution

control facility”.

§702.186

Revocation (USEPA #15)

This Section has been modified to state the condjtions

under which the Board will revoke permits rather than the

conditions under which the Agency may request revocation

(USEPA #15).

These conditions will apply to citizen suits

also.

53-155

---

—26—

As noted above,

there are several types of permit

modifications which are unique to the RCBA permit system

$702.184(e).

These include:

required

modification of the

closure plan; modification of the level of financial responsi-

bility; modification to establish a groundwater detection

monitoring, compliance monitoring or corrective action

program;

and, when a land treatment unit fails to achieve

complete treatment under its current permit conditions.

These types of permit modifications cause difficulty because

they could arise in situations in which an enforcement

action

would

also

be

appropriate.

Permit modification may resemble enforcement in many

situations

in

the

RCRA

rules.

First,

it

should be noted

that

“permit

revocation~’

in

the

literal

sense

would

rarely

be

the

result of an enforcement

action,

especially

in

cases

of

extreme

environmental

damage.

The

most

extreme

result

likely

would

be

an

order

toe

ease

operations,

close

the

facility

and

undertake

ost~closurecare,

This

would

essen-

tially

be the equivalent of revocation of a Chapter

7 opera-

ting permit.

The Board would order the permit system

utilized during the post-~c1osurecare period, which could

exceed 30 years,

rather than supervising the facility

through

modifications to Board

orders,

The end result of

the enforcement action would be a permit modification rather

than revocation in the literal meaning.

In an enforcement action the burden of proof is on the

Agency, while

in

a

permit

modification the burden is on the

applicant.

The

original

issuance of the permit shifts the

burden of proof,

and gives the applicant some reason to

expect that

if he constructs and operates in accordance with

the permit he will suffer no ill effects,

The Agency’s

ability to reopen the permit in a context where the burden

is on the

permittee

is limited,

The major limitation on modification is that it cannot

be used by the

Agency

as a substitute for an enforcement

action to punish the permittee for past violations of the

rules and permit conditions.

For example,

if the Agency

determines during a modification that the permittee falsi-

fied information in the original application,

it cannot deny

the permit modification as

a penalty.

If the permittee

provides true information which is sufficient for issuance,

the Agency must issue a modified permit based on such infor—

mation.

However,

the

permit could be revoked by the Board

as a penalty following

an

enforcement

action.

Permit modification is forward—looking:

the question

is whether the facility will comply with

the rules during

the period of the requested permit.

Permit denial as a

result of modification should be based on a finding that

53-156

---

—27—

either the rules or the facility itself has changed so that

the facility cannot comply with the rules.

Permit modifications do not become effective until

after there has been the opportunity for an appeal and a

hearing and review by the Board.

The groundwater protection modifications are initiated

by a permit modification application which the permittee

must file upon the happening of certain conditions,

such as

the entry of indicator parameters into groundwater.

The

Agency will modify the permit to establish compliance monitor-

ing and corrective action programs,

The Agency could also

file an enforcement action and ask the Board to order com-

pliance monitoring and corrective action.

If the permittee

files the modification application, the Agency may proceed

either, or both, ways.

If the permittee refuses or fails to

file the application, the Agency’s only option would be to

file an enforcement action,

alleging failure to file the

application as well as groundwater pollution,

The financial responsibility rules allow the Agency to

modify the permit on its own initiative to increase the

amount of

financial responsibility or liability insurance

which must be maintained.

Such modifications would not be

effective until after the opportunity for a hearing and

Board review by way of permit appeal.

The rules contain

adequate standards which the Agency must follow to determine

the required level of coverage,

Board review will prevent

abuses of this mechanism such as arbitrary increases in the

amount of assurance as a punitive measure rather than to

reflect actual closure costs or liabilities.

53-157

---

—28—

PART 703

RCRA

PERMIT

PROGRAM

§703.100

Scope and Relation to Other Parts

(STL 8, IEPA #31)

The Federal regulations use the term “solid waste” to

mean “waste”, including liquid waste

(IEPA #31).

This is

defined in Part 721.

§703.101

Purpose

(STL 9)

The purpose of Part 703 will be to provide for issuance

of

RCRA

permits and to allow Illinois to receive “final

authorization”

(STL 9)

-

§703.120

Prohibitions in General

(STL

9, IEPA #30)

This is a general introductory section outlining the

Subpart and placing it in context.

The rather simple

permanent portions of the permit program have been separated

from the interim status rules,

§703.121

RCRA Permits

(STL

9)

Paragraph

(a)

repeats the portion of the statutory

prohibition of §21(f) (1)

of the Act which requires permits

and compliance with permit conditions.

The term “site”, as

used in the Act, has been changed to “HWM facility” in the

regulation.

The Act uses “site” and “facility” interchange-

ably, while “HWM facility”

is a term of art in the RCRA

rules

$3(dd)

and §702,110,

The “HWM facility” includes

all contiguous land and structures around one or more TSD

units.

There will be one permit for all the units,

rather

than separate permits for each unit,

§703.125

Reapplications

(IPC

37, USEPA #43)

This section requires reapplications to be submitted at

least 180 days in advance of the expiration date of an

existing permit

(IPC 37)

-

The Agency may give permission to

file the application late, up to the actual expiration date

(USEPA #43).

If the application is timely,

the old permit

will continue in effect during the renewal proceedings;

otherwise,

the applicant will be required to cease operations

during the pendency of the application

(88702.125 and 705.202).

§703.127

Federal Permits

(USEPA #26)

RCRA permits issued by the United States Environmental

Protection Agency prior to final authorization constitute

RCRA permits within the meaning of S2l(f)

of the Act and

§703.121 (USEPA #26).

53-158

---

—29—

§703.140

Purpose and Scope

(STL 9,

IPC 38)

The interim status rules have been separated from the

rather simple permanent rules requiring actual permits.

Although interim status is important now, eventually all

facilities will have actual permits.

The way the federal

rules are organized it will be necessary to search through

dozens of pages of intricate rules to find the simple rules

applicable to the permitted facilities.

The Board’s reorgani-

zation will avoid this

(IPC 38).

The commenters have indicated that the federal permit

rules have themselves been recodified.

The Board is not

able to address the federal recodification within the time

constraints for this rulemaking.

The Board will address the

advisability of reorganizing this Part in a later rule-

making.

§703.141

Permits by Rule

(USEPA 23)

The Board believes that ocean disposal of hazardous

waste will not be common in Illinois and that it is a matter

which is better left to Federal regulation.

§703.141 grants

an Illinois

RCRA

permit by rule to persons who comply with

certain Federal regulations, rather than the equivalent

Illinois regulations.

This should be easier for a person

engaging in ocean disposal to follow,

since he

is likely to

have only minimal contact with Illinois.

§703.150

Application by Existing HWM Facilities

(STL 9,

IPC 38,

IEPA #1)

Section 703,150(b)

allows the Agency to call in Part B

applications which will result in actual permit issuance

(IPS 38).

The Board expects the Agency to establish a

schedule based on such factors as its ability to review

applications and the potential environmental hazard of

various categories of facilities, and to pursue a vigorous

program resulting in issuance, or denial, of actual permits.

The time for submission of a Part A application may be

extended only by a variance granted by the Board

(STL 9,

IEPA #1,

IPC 39).

The Board has added language indicating

that it will consider whether there has been “substantial

confusion” caused by ambiguities in the regulations in

deciding whether to extend the time for a Part A application

(IPC 40)

-

53-159

---

—30—

§703.152

Amended Part A Application

(USEPA #20)

An amended

Part

A

will

be required within

6 months after

the effective date

of

any additional listings of hazardous

wastes handled by

the

facility

(USEPA *20),

§703.154

Prohibitions During Interim Status

(STL 10,

IPC

41)

Section 703.154(d),

as proposed,

prohibited

the

construction

of a new TSD unit,

This has been deleted from the proposal.

The

question

of

whether a new unit

can

be

constructed

will

depend

on a case—by—case determination pursuant to Section 703.155

(STL 10, IPC 41),

§703.157

Grounds

for Termination of Interim Status

(USEPA 441 and *42)

40 CFR 122,23(e) (2) apparently contains an erroneous

reference to 40 CFR 122.22(a) (3), which corresponds to

§703.150(c), concerning extension of the time for filing of

Part A applications through a variance,

USEPA has indicated

that the correct reference is to 40 CFR 122,22(a) (5),

which was dealt with in §703.159 in the draft.

40 CFR

122.22 (a) (5) provides that interim status terminates if the

owner or operator fails to file the Part B on time.

This will

be inserted into the text of §703,157 rather than §703.150

(USEPA #41 and *42).

The termination of interim status

following a variance will be provided for under the terms of

the individual

variance

orders,

40 CFR 122,22(a) (5) provides that the termination is

“under Part 124”.

It is not clear

which

procedures of

Part 705 correspond to the federal reference.

The Board has

therefore

provided

that the Agency is to issue a draft notice

of intent to deny when an interim

status

facility

fails

to

file

a

Part B application.

§703.158

Permits for less than

the

Entire

Facility

(STL

10,

IPC

42,

IEPA

#24,

432, USEPA #27)

In the July 26,

1982 amendments USEPA added a provision

to 40 CFR 122,21(d) (4) which allows for partial facility

permits with a continuation

of

interim

status

for

units

for

which no permit has

been

issued

or

denied,

The

Board

will

follow this Federal amendment,

although questioning the wisdom

of partial facility permits.

The Board encourages th~Agency

to incorporate into such partial facility permits

a precise

description of which

units

are subject to the permits and which

units continue to operate under the interim status rules.

53-160

---

—31—

The Board has also dropped proposed §703.159 which

would have set definite dates

for Part B applications and

termination of interim status,

The Board will address this

in a rulemaking pursuant to Section 22.4(b)

of the Act

unless rapid progress is made toward satisfying the legis-

lative mandate that RCRA permits be issued

(STL 10, IPC 42,

IEPA #24,

#32, USEPA #27).

The provisions on termination of

interim status are in §703,157,

§703.180

Applications in General

(STL 10,

IPC 43, IEPA *33)

This section is an introductory section which summarizes

when the applications are required and what they contain.

This is intended as an aid to the user and does not override

the specific provisions.

A summary of the types of applica-

tions

is necessary since these rules have been reorganized

from the federal,

The

Agency

asked

that

the

second

sentence

of

§703.180(a)

be clarified to indicate that Part B applications may be

filed voluntarily at any time.

The section seems to be

sufficiently clear on this point.

§703.182

Contents of Part B

(IPC 44)

This section contains a “menu” for the Part B application.

The corresponding 40 CFR 122,25 has been broken up and

rearranged.

The Agency has authority to make allowances on

the information requirements

(IPC 44),

§703.183

General Information

(STL ii,

IPC 44)

Section 703.183(t)

corresponds to 40 CFR 122.25(a) (20).

It has been reworded to state the Agency’s authority under

the Illinois Act to require such additional information “as

may be necessary to determine whether a permit should be

issued and what conditions to impose.”

This should be done

by way of a letter to :Lndividuai applicants

(8705.123).

§703.184

Facility Location Information (STL 11,

IPC 45,

USEPA #18,

#19)

Section 703,184(a)

requests information to enable the

Agency to determine whether §21(k)

is applicable and,

if so,

whether its requirements have been satisfied,

The Board has

added language to specifically allow

a demonstration that

§21(k)

is inapplicable, as,

for example,

in the case o~a

storage facility

(STL 11),

53-161

---

--32—

The Board has added a specific reference to §21(k)

for

the convenience of the public.

The alternative of having

the Agency reject each application with a specific request

for §21(k)

information would be expensive and burdensome to

the public

(IPC 45),

USEPA has asked that §703,184(d) (3) (B) be amended to

include a reference to Part 705, which is the equivalent of

40 CFR 124.

The requested reference would limit facilities

to which waste can be moved

in the event of flood to those

“eligible

to

receive

hazardous waste in accordance with the

regulations under” Part 705, as well as Parts

702,

703, 724

and 725.

In the Illinois system Part 705 will include

procedures only, with no provisions concerning the eligibility

of the site

(USEPA #18).

Facilities which are not in compliance with floodproofing

requirements are required to have a compliance plan and a

Board variance

8703,184(e).

Board variance procedures

in

§702,108 will be adapted to be equivalent to USEPA compliance

plan procedures

(USEPA #19),

§703.205

Incinerators

(STL 11,

IPC 46)

Section 703.205(c) (7) has been modified from the federal

language found at 40 CFR 122,25(b) (5) (G)

to limit the Agency’s

power to request additional information in accordance with

State law.

This should take the form of an individual

request under §705,122, rather than a modification to the

application form without Board rulemaking

(STL 11).

Section 703.205(d)

allows the Agency to approve a

permit application for an incinerator without a trial burn

(IPC 46)

§703.221

Emergency Permits

(STL

12, IPC

46, IEPA #14,

USEPA #17)

The Agency can issue a temporary “emergency permit” to

a facility with an effective permit to allow treatment,

storage or disposal of hazardous waste for a non—permitted

facility if the Agency finds “an imminent and substantial

endangerment to human health or the environment”.

Note that

these may be issued only

to

facilities

which already have an

actual permit.

Section 703,221(f)

infers that the permit could bç~

inconsistent with Board rules,

This would be inconsistent

with the general division of powers between the Board ~nd

Agency.

The Board has specified that a variance or provisional

variance is required for inconsistent emergency permits.

Note that no variance would be required for a consistent

permit.

53-162

---

—33—

Proposed S703.22l(f)

has been modified to limit the

variance requirement to permits which would be inconsistent

with Board rules other than procedural requirements.

The

emergency permit may be issued without following the Part 705

procedures.

The variance procedures will be adapted to be equivalent

to the federal permit modification procedures

(S702.108).

The variance will not be a substitute for the emergency

permit, but will be a precondition.

The post-hoc notification

procedures of §703.221(e) will be carried out by the Agency

following the emergency permit issuance (USEPA #17).

PART 704

UIC

PERMIT

PROGRAM

The Board received no comments on Part 704.

PART 705

PROCEDURES FOR PERMIT ISSUANCE

§705.101

Scope and Applicability (STL

12)

The final sentence of §705.101(c)

has been dropped.

This was adopted with the

tJIC rules

as an attempt to recon-

cile the Agency and Board hearing processes

(STL 12).

The

Board held that hearings at the Agency level are non-adversary

public participation hearings.

The hearing before the Board

will be an adjudicatory hearing,

Appeal will be limited to

issues which were properly raised at the Agency level

(8705.212).

§705.122

Completeness

(STL 12)

40 CFR 124.3(c) specifies definite time limitations for

review of permit applications for completeness.

These were

omitted from the UIC rules because they are not necessarily

required for State programs.

However, experience has taught

that definite time limitations for Agency actions are often

necessary.

40 CFR 124.3(c) requires that USEPA notify the applicant

“that the application is complete upon receiving this informa-

tion”

(STL 12).

This seems to leave open the question of

what USEPA is to do if the information is not sufficient.

The Board has modified the Federal language to address this

explicitly.

The UIC rules required that this be done t”promptly”.

The Board has changed this to specify that the time 1i~nita-

tions of paragraph

(b)

apply,

so that the Agency will have

the same time to review the additional information as the

original application.

“Promptly” could leave open questions

of interpretation.

53-163

---

—34—

§705.123

Incomplete Applications

(STL 13)

40 CFR 124.4(d) provides that the permit may be denied

and appropriate enforcement taken if the applicant fails or

refuses to correct deficiencies.

Section 705.123 allows the

Agency to issue or deny the permit, while the Federal rule

seems to limit the action to denial.

This would seem to

place the Agency in a box if the applicant refused to correct

the deficiency and the Agency decided that the application

was in fact complete:

the Agency’s only action would be

denial, followed by an appeal and confession of error.

The Board has eliminated the references

to enforcement

under this Section.

Any person who is operating without the

necessary permits is subject to enforcement

(8702.109).

§705.124

Site Visit

(STL 13)

The Agency is to treat a failure or refusal to allow

a

site visit as an application deficiency.

§705.125

Effective Date

(STL 13)

This Section of the UIC rules required public notice

of complete applications.

Such notice was required by the

Act prior to S.B.

172.

The Board will therefore drop the

public notice requirements for applications from this Section

and S705.l6l(a) (1),

The public will receive a draft permit

or notice of intent to deny, however.

§705.128

Modification or Revocation of Permits

(STL 13,

USEPA

#5)

Section 705.128(c)

required the Agency to give public

notice before it initiated permit modification.

This will

be deleted for the reasons noted in connection with §705.124

(STL 13).

Section 705.122(c) (2)

contains

a sentence to the effect

that all draft permits prepared in the modification proceed-

ings must be based on the administrative record of §7Q5.l44

(STL 13).

This sentence is absent from 40 CFR l22.5(q)(2)

and will be dropped.

Note,

however,

that the sentence is

true in that §705,141(d)

says that all draft permits n~stbe

based on the §705.144 administrative record,

and that

§705.128(c) (1)

says that modification must proceed by way of

draft permit.

53-164

---

—35—

Under USEPA procedures permits may be revoked, termin-

ated or revoked and reissued by way of draft permit or

notice of intent to deny.

As noted elsewhere, the Board has

the authority to revoke permits.

The Board will utilize the

procedures of Title VIII of the Act and 35 Ill. Adm. Code

103, rather than the draft permit/notice of intent to deny

mechanism.

The Board’s procedures for public participation

are equivalent to the federal

(USEPA #5).

As noted above,

the Agency has authority to modify

permits in certain situations which could be similar to

revocation.

The Board has therefore added a paragraph

stating that, to the extent that it has such authority, the

Agency must proceed by way of the Part 705 procedures.

This

Section is neutral as to the Agency’s authority, but speci-

fies a procedure to be followed in any case in which autho-

rity exists.

§705.161

When Public Notice Must be Given

(STL 13)

The requirement of public notice of receipt of an

application has been deleted for the reasons noted in

connection with §705.125 (STL 13).

§705.162

Timing of Public Notice

(USEPA #1)

RCRA permits will require 45 day periods, UIC permits

30 day periods

(USEPA #1).

§705.163

Methods of Public Notice

(USEPA #6,

7,

8,

16 and

44; IEPA #15)

The methods of notice differ slightly between RCRA and

UIC permits

(IEPA #6,

7 and 16).

Section 705.163(c)

has

been split to reflect the different wording.

Notification in compliance with Board rules will

constitute legal notice under State law (USEPA #44).

USEPA has asked for inclusion of specific notification

requirements from 40 CFR 124,10(c) (1) (iii)

and

(ix).

These

have been added as §705,163(a) (3) and

(5).

The Board has dropped the notification requirements for

local officials insofar as the provisions on which this

requirement was based have been dropped from the Act

(IEPA #15,

CARES 2).

53-165

---

—36—

§705.182

Public Hearings

(USEPA #2,

3,

4, IEPA #16,

34)

The mandatory public hearing for RCRA permits has been

dropped (IEPA #16; CARES

3).

The statutory basis for this

was repealed with S.B.

172

and replaced with the procedure

for site approval by local government.

The public hearing rules for RCRA permits differ from

the UIC rules at 40 CFR 124,12(a).

The public hearing will

be required whenever the Agency receives written opposition

and a request for a hearing during the public comment period

on a draft permit

(USEPA #2,

3;

IEPA #16,

34).

The Agency

will be expected to develop hearing procedures and submit

them to USEPA (USEPA #4).

§705.184

(STL 13,

IEPA #19)

The Board has dropped §705.184(f).

The Agency decision

periods do not apply to RCRA and UIC permits

(STL

13,

IEPA #19).

§705.210

Response to Comments

(STL 14, USEPA #9,

10)

Section 705,210(b) (5)

requires the Agency to respond to

all significant comments “raised during the public comment

period.”

This includes both written comments and comments

made at a public hearing

(USEPA #9).

Section 705,210(c)

was omitted from the text published

in the Illinois Register because of a typographical error.

This provides that the response to comments must be avail-

able to the public

(USEPA #10),

Paragraphs

(c)

and

(d)

in

published text were from §705,211

(STL 12).

§705.211

Administrative Record for Final Permits or

Letters of Denial

(STL 14)

This Section was omitted from the text published in the

Illinois Register because of a typographical error, aLthough

paragraphs

(c)

and

(d) were printed as part of §705,210

(STL 14)

Section 705.211(e)

has been dropped.

The Board must

have the entire final administrative record in order

to

review any permit appeals,

53-168

---

—37—

PART 720

HAZARDOUS

WASTE

MANAGEMENT:

GENERAL

The Board received only a positive comment on this Part

(STL 14)

PART 721

IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

Because of its importance in Part 724,

the Board has

replaced the incorporation by reference with the actual text

of

40 CFR 261, Appendix VIII, the list of hazardous constit-

uents.

The Appendices will be lettered A

-

H to conform

with codification requirements.

The Board has identified a

number of problems with the Federal list.

Obvious errors

have been corrected;

less obvious problems will be addressed

in

a future rulemaking,

PART 724

STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS

WASTE TREATMENT, STORAGE AND DISPOSAL FACILITIES

§724.101

Purpose, Scope and Applicability

(STL 15, IEPA *22,

USEPA #29)

Section 724.101(g) (1)

is drawn from 40 CFR 264.1(g) (1).

Facilities which manage only waste generated by small quan-

tity generators are exempt from the Part 724 standards.

The

Board has added a comment noting that the generator may have

to have a Chapter

7 permit and a Chapter

7 “supplemental

permit”

(Rule 210),

In other words the RCRA exemption is

not to be read as an exemption from the Chapter 7 permit

program (STL 15, IEPA #22).

The language of the comment has been changed from Fhat

proposed to make it clear that the comment does not alt~r

the scope of Chapter

7,

This

is just a comment to a1er~the

reader to the other permit program.

40 CFR 264.4 provides that, notwithstanding any ot1~er

provisions, enforcement actions may be brought pursuant to

Section 7003 of the Resource Conservation and Recovery Act.

The Board has proposed no State equivalent in Part 724

(USEPA #29),

Enforcement actions may be brought by any

person pursuant to Title VIII of the Environmental Protec-

tion Act and §700.109.

The existence of a permit is a

defense only to a charge of operation without a permit

(8702.181)

53-187

---

—38—

§724.118

Location Standards

(USEPA #40,

IEPA #8,

17,

18)

Section 724,118(a)

prohibits TSD units within

61 meters

of a fault which has had displacement in Holocene time.

40

CFR 261, Appendix VI, which is incorporated by reference,

says that there are no such faults in Illinois.

The Board

construes this

as creating a presumption that there are no

such faults in Illinois,

so that the permit applicant need

not prove the absence of such faults

in the original appli-

cation,

However, the Agency, or opponents,

of the permit

could present evidence of the actual presence of such a

fault, at which time the applicant would need to come forward

with evidence.

Section 724.118(b)

sets special requirements for facili-

ties located within the 100 year floodplain.

Section 703.184(f)

requires schedules of compliance for facilities which do not

meet §724.118(b).

Section 702.108 will require concurrent

variance petitions for such facilities

(IEPA *8).

Facilities which are “new regional pollution control

facilities”

will

require

site

location

suitability

approval

from local government under §39,2 of the Act.

Such facilities

will be required to demonstrate to local government a deter-

mination by Illinois Department

of

Transportation

that

the

site is outside the 100 year floodplain,

or is floodproofed

to meet Illinois Department of Transportation standards.

Such a demonstration will not be taken as precluding an

independent review by the Agency as to whether the site

indeed meets §724.118(b)

(IEPA #17, USEPA #40).

40 CFR 264.18 contains no reference to underlying

geological conditions other than faults.

The absence of

detailed geological siting regulations should not be con-

strued as precluding review of underlying aquifers and the

permeability of intervening formations by the Agency, which

must determine whether the facility would cause violation of

§12(a)

or 12(d)

of the Act because of siting in areas which

contain aquifers which are not adequately separated from the

facility by formations of low permeability

(IEPA #18).

The

Agency may request supplemental information addressing such

issues if applications are inadequate to allow

it to make a

finding.

53-168

---

—39~

§724,132

Required Equipment

(IPC 12)

This Section requires certain safety equipment, such as

fire hydrants, “unless the owner or operator demonstrates to

the Agency that none of the hazards posed by the waste

handled at the facility could require a particular kind of

equipment specified...’~ This Section contains an internal

exception procedure which sets a standard which the Agency

can apply

to adjust the effect of a Board rule.

The standard

is sufficiently specific that the Board can review the

Agency’s action should an appeal result

(IPC 12).

No variance

is needed before the Agency issues a permit pursuant to this

exception provision.

§724,136

Special Handling for Ignitable or Reactive Waste

(STL 15, IPC 16)

This

Section of the proposal was drawn from the 40 CFR

264,36(1981).

The Federal section was terminated at 46 Fed.

Reg,

2849, January 12,

1981, effective July 13,

1981.

It

will be deleted from the proposal.

S724,171

Use of Manifest System

(STL 15, IEPA #20)

The Federal rule has been modified to require that a

copy of the manifest be sent to the Agency by the HWM facility.

The Agency’s computerized system will match the manifest to

the generator’s manifest and create any needed missing local

reports

(IEPA #20),

The Board has added the pre-existing

Chapter

9 manifest requirements to the RCRA

rules,

allowing

it to exempt hazardous waste

from

duplicative

regulation

under this aspect of Chapter

9

(STL 15).

§724,172

Manifest Discrepancies

(IPC 16)

40 CFR 264.72(a) contains two subparagraphs with a

return to the main paragraph (a)~ This violates Illinois

codification requirements.

Furthermore,

the “hanging paragraph”

cannot be cited numerically.

The Board has therefore renumbered

paragraph

(a)

to conform with codification requirements.

However,

the renumbering has been modified from the proposed

version to preserve the correspondence between 40 CFR 24,17(b)

and §724.117(b)

(IPC 16).

§724,175

Annual Report

(IEPA #21,

35)

The Agency will promulgate annual report forms based on

40

CFR

264,

Appendix

Ii

(IEPA

#35),

53-169

---

—40—

§724.177

Additional Reports

(IPC 17)

The proposed Section has been modified to make it

follow 40 CFR 264.77.

Paragraph

(b)

is reserved in the

Federal rule, Current codification dogma prohibits the

reservation

of

subparagraphs,

so

paragraph

(b)

will

simply

be

skipped

in

the

Board

rule.

§724.190

Applicability

(Groundwater

Protection)

(IPC

17,

USEPA *30)

The Federal groundwater protection rules apply

to

disposal units which received hazardous waste after the

effective date of 40 CFR 264, Subpart F,

The date was

January

26,

1983,

The

State

equivalent

will

utilize

this

same

date,

rather

than

the

future

effective

date

of

the

Phase

II

amendments

(USEPA

#30)~

The

groundwater

protection

rules

work

through

a

series

of

permit

modifications.

Indicator

parameters

are

specified

in

the detection

monitoring

program.

When an increase over

background is

detected,

the

permittee

files

modification

applications to establish compliance monitoring and corrective

action programs.

As noted above,

these pose difficulties

because the Agency could

also

file an enforcement action

alleging

actual

or

threatened

groundwater

pollution,

The

Board has determined to adopt rules providing for a permit

modification system similar to the Federal rather than

insisting

on

enforcement

actions to establish remedial

action,

If

the

permittee files the necessary

modification

applications,

the

Agency

may proceed to remedy the situation

through permit modification,

If the permittee

refuses,

the

Agency should proceed with enforcement

(IEPA *2).

Section 724,190(b) (3)

and

(4)

exempt operators from the

groundwater

protection

rules

if the Agency makes

certain

findings in reviewing the facility permit

application.

This

rule contains an internal exemption procedure which allows

the

Agency

to

modify

the effect of the regulations

without

the

necessity

for

a

variance,

The standards are

adequate

to

allow

Board

review

(1PC 17).

§724,192

Groundwater Protection Standard

(IPC 18)

The Agency is to establish a “groundwater protection

standard”

in certain permits~ Numerical limitations based

on Board rules will

be

written as permit conditions~

The

use

of

the

word

“standard”

to

describe

such permit

condItions

differs from the Board’s usual usage of this term to describe

numerical limitations set by Board rule,

rather than permit

limitations.

53-170

---

—41—

§724.193

Hazardous Constituents

(IPC 18, IEPA #5,

9)

Hazardous constituents are chosen by the Agency from

the list in Part 721, Appendix VIII

(or H).

Hazardous

constituents specified in the permit are those which have

been detected in groundwater in the uppermost aquifer under-

lying a regulated unit, which are reasonably expected to be

in or derived from waste contained in a regulated unit,

unless the Agency excludes them under §724

.

193 (b).

The

constituent is excluded if it is found that it is not capable

of posing a substantial present or potential hazard to human

health or the environment.

Specification therefore requires three determinations:

whether the constituent has been detected in groundwater;

whether it is derived from waste;

and, whether it poses a

hazard.

The first two determinations are clearly the types

of adjudications which the Agency can make in permit issuance

or modification;

the third is more like rulemaking

(IPC 18).

Exclusion pursuant to paragraph

(b)

requires considera-

tion of potential adverse effects on groundwater and hydrau-

lically connected surface water quality.

Nineteen specific

factors are listed which must be considered before a constit-

uent is excluded.

The Board has added §724.193(d)

to require

that the Agency make written findings on each factor before

excluding constituents.

The specific findings will ensure

that the Board can adequately review the Agency’s determina-

tions in any appeal.

Illinois power contends that, apart from the question

of whether the rule specifies a reviewable standard for the

Agency to apply, the determination is the equivalent ot

establishing an environmental control standard or regulation,

a quasi-legislative function delegated to the Board

(IPC 18).

The Board recognizes that this is

a troublesome issue.

The

determinations to be made are indeed similar to the deter-

minations which would be made by the Board in establishing a

standard.

However,

the Board’s determination in a rulemaking

to establish a list of hazardous constituents would center

on the impact under the worst conditions

in the State.

The

Agency’s action,

on the other hand,

involves pruning from a

list established by regulation.

The Agency’s action is

based on conditions at a certain site involved in the permit

application.

§724.194

Concentration Limits

(IPC 20, IEPA #5,

9)

This section provides that the Agency will establish

concentration limits

in the permit for each hazardous con-

stituent established under Section 724.193.

Paragraph

(a)

53-171

---

—42—

provides that the concentration limit is to be determined by

one of three alternative rules.

The concentration must not

exceed:

the background at the time the limit is specified;

for certain constituents, levels specified by Board rule;

or,

an alternative number specified by the Agency after

finding that the constituent will not pose a substantial

present or potential hazard to human health or the environ-

ment so long as the alternate concentration limit is not

exceeded.

This determination is to be based on potential

impact on groundwater and surface water.

The Agency must

consider a list of 19 factors similar to those

in Section

724.193(b).

The Board has added a paragraph

(d), requiring

specific written findings.

This will allow for effective

Board review of the application of these standards.

This system for establishment of numerical limitations

in permits differs from the system for surface water discharges

pursuant to NPDES permits

(35 Ill, Adm. Code 309.141 et

seq.).

The Agency applies USEPA effluent limitations, Board

effluent standards and Board water quality standards to

arrive at the permit limitations.

The Agency applies the

most stringent number to the permit.

In the RCRA system on

the other hand the Board rules will supply a list of hazardous

constituents, numerical limitations for 14 constituents and

a set of rules by which the Agency arrives at the numerical

limitation in the permit.

For most constituents the Agency

sets a number in the complete absence of a Board numerical

standard, and the Agency can adjust the Board standard up or

down,

Illinois Power again contends that, even though the

standard for Agency action is specific and reviewable,

that

paragraph

(a) (3)

and

(b)

involve determinations by the

Agency which are the equivalent of establishing an environmental

control standard or regulation,

a power delegated only to

the Board.

Apparently Illinois Power believes that the

process of setting permit limitations, and part of the

process of identifying hazardous constituents under the

preceding section, must be routed through a variance, site

specific rulemaking or some newly created adjudicatory

process before the Board

(IPC 20),

Before considering whether this Section involves an

invalid delegation of rulemaking authority to the Agency,

it

is important to again discuss the procedural context in

which the Agency specifies hazardous constituents and con-

centration limits in the permit

(p.

11 et seq.).

Most

facility permits will be issued with “detection monitoring

programs” which involve monitoring for “indicator para-

meters,” rather than hazardous constituents.

53-172

---

—43—

If an indicator parameter shows a statistically significant

increase

over

background,

the

permittee

must

presumptively

monitor to establish a background level for all Appendix

VIII

(or H)

hazardous constituents.

A permit modification

application must then be filed to establish a “compliance

monitoring

program”.

The

hazardous constituents and ground-

water

protection

standard

are

written

into

the

permit

at

this point,

It should be first noted that the specification of

constituents and the standard will always take place under

emergency conditions, after groundwater has shown an increase

in indicator parameter levels,

To

reserve this power to the

Board would

necessitate

a significant delay in

permit

modifi-

cation to establish compliance monitoring and corrective

action.

The variance procedure would not work because there

is no Board standard to request a variance from, and the

Agency would have

to

be the petitioner.

The most workable

method for Board action would be to require the Agency to

propose a site-specific rulemaking to the Board,

Such

rulemakings commonly take two years to complete.

This would

be an unacceptable delay in an emergency situation,

An alternative would be for the Board to establish

numerical limitations for the Appendix VIII

(or H) hazardous

constituents,

However, this would necessitate substantive

rulemaking pursuant to Section 22,4(b)

of the Act,

This

could not be completed in time to meet the deadline for

adoption of the RCRA permit program.

Moreover,

there may be

difficulties in setting statewide standards which would

infer

acceptable

limits for all of these constituents.

In the second place, the Board notes that the Agency’s

action is limited to setting limitations for constituents

which are drawn from a list set by Board rule.

This is a

much more narrow authority than that exercised by the Board

in a rulemaking to set standards,

Thirdly, the permittee will have to establish a background

value for each hazardous constituent available for inclusion

in the permit.

The Agency will have this number as a starting

point to establish the permit limitation,

Determination of

such background levels at a given site is a decision which

is well within the Agency’s permit authority.

Paragraph

(b)

gives a formula whereby the Agency sets the permit limitation

above or below the background so determined,

53-173

---

—44—

§724,197

General Groundwater Monitoring Requirements

(IPC 21)

Section 724.197(h) (1) (A)

specifies the use of “Cochran’s

Approximation to the Behren~s—FisherStudent’s t-test” to

determine whether a statistically significant increase over

background levels has occurred in a detection monitoring

program.

Paragraph

(h) (2)

allows the use of other statistical

tests to be specified in the permit.

To get an alternative

test the applicant must demonstrate to the Agency that the

alternative “provides a reasonable balance between the

probability of falsely identifying a non-contaminating

regulated unit and the probability

of

failing

to

identify

a

contaminating

regulated

unit,”

This

is an adequate standard

to allow Board review should a permit appeal result.

However,

Illinois Power contends that this

is the

equivalent

of

establishing an environmental control standard,

a

power

delegated to the Board alone

(IPC 21).

A comparable provision is the averaging rule of 35 Ill.

Adm.

Code

304.104.

This

sets rules for determining whether

violation of the numerical effluent

standards

set

by

Board

rules has occurred,

The detection monitoring

program

on

the

other

hand

does

not

involve

any

standards.

The

permittee

just

monitors

for

indicator

parameters.

The

standard

is

set

after

the

statis-

tically

significant

increase

over

background

is

observed.

Detection monitoring includes monitoring for innocuous

parameters such

as

total

conductance,

There is no violation

of the permit conditions

if

the

background

is

exceeded;

it

just triggers a permit modif:Lcation and establishment of the

standard,

The

Board therefore concludes that the

specifica-

tion

of

alternative

statistical

procedures

is

a

valid

exercise

of

a

permitting

function

of

the

Agency.

§724,198

Detection

Monitoring

Program

(STL

15,

IPC 22,

IEPA #2)

Section

724,198(1)

allows the operator to

demonstrate

that

a

source

other

than

a

regulated

unit caused the increase

in

indicator

parameters

over background levels, or that the

increase

resulted

from

an

error

in

sampling,

analysis

or

evaluation.

The Federal rules are vague as to how this

demonstration is to be made.

The Board has provided that

this is to be a permit modification proceeding which can be

appealed to the Board separately from the permit modifications

to establish compliance

monitoring

and

corrective

action

programs.

The idea is to afford the

permittee

the oppoi~tunity

for a quick review of this to get a final decision before he

has

to file the applications for the compliance monitoring

53-174

---

—45—

and corrective action programs, which could involve large

engineering fees.

The alternative is Board review of the

Agency decision after its action establishing compliance

monitoring.

The Board has modified the federal rules in order

to

resolve an ambiguity which becomes important in the Illinois

two-Agency system.

The Board has authority to modify the

Federal rules to make them fit the Illinois system,

so long

as the rules remain identical in substance (STL 15,

IPC 22).

§724.200

Corrective Action Program

(USEPA #31)

A

typographical

error

has

been

corrected

in

the

final

line of §724.200(d),

§724.213

Closure; Time Allowed for Closure

(STL 15,

IPC 23)

40 CFR 264,113 requires that the operator must treat,

remove or dispose of all hazardous waste within 90 days

after

receiving

the

final

volume,

unless

the

operator

makes

a specified showing.

The operator must complete the closure

plan within 180 days unless he makes a similar showing.

This could be construed as a defense or as grounds for

waiver which the operator can use if he fails to complete

closure within the time limits specified.

However,

this

interpretation would appear to allow the Agency to grant

variances from Board rules, and would be inconsistent with

the overall intent of the closure rules..

Under §724.212 the operator must file a closure plan

with the original permit application.

The Agency issues the

permit with a closure plan, even though closure may not be

expected for decades.

The plan can be amended through

permit modification,

The intent of the Federal rule on time

for closure is that the permit specify

a certain time unless

the operator elects to make the alternative showings.

The

operator would have to obtain a permit modification in

anticipation of closure to obtain a longer time,

The Federal

rule is a prescription for writing permit conditions,

not a

defense or waiver provision.

The Board has modified the

Federal text to state this more clearly so as to avoid an

interpretation which could be construed as a delegation of

variance authority to the Agency.

As stated the

90 and 180 days are presumptive norms.

The applicant need not make the showings to extend the time

for closure if he wants a permit with the 90 and 180 day

time limits.

This type of rule saves the Agency and applicant

time in the application process by requiring detailed informa-

tion only in the unusual case where the applicant wants to

depart from the norm.

53-175

---

—46—

§724,217

Post-closure Care and Use of Property

(IPC 23,

IEPA #6,

10)

As proposed §724.217(a) (2) (A)

allowed the Agency to

reduce the 30—year post-closure care period to a lesser

period which

it finds

to be ~‘sufficientto protect human

health and the environment”.

Section 724,217 (a) (2) (B)

allowed extension beyond 30 years if necessary to so protect.

Illinois Power

contends

that this is the equivalent to

establishing an environmental control standard

(IPC 23).

The Board agrees, noting that the stated standard is not

sufficiently specific to allow for Board review,

The Board has modified this Section to require site-

specific rulemaking to

alter

the 30—year period in this

manner.

Even

a two—year delay

in rulemaking would not be

significant with respect to the 30-year period

established

by the rule.

§724.240

Applicability

(Financial Requirements)

(IPC 24)

40

CFR

264,140(b)

was

amended

at

47

Fed,

Reg.

32357,

July 26,

1982

(IPC 24).

The post—closure care provisions

apply

not

only

to

disposal

facilities

(landfills),

but

also

to

piles

and

surface

impoundments

if waste residues or

contaminated

materials

are

to

be

left

in

place

at

final

closure.

§724,242

Cost Estimate for Closure

(IPC 24)

40 CFR 264,142(a)

was amended at 47 Fed, Reg.

32357

(July 26,

1982),

§724,243

Financial Assurance for Closure

(STL

15,

IPC 25,

USEPA #37, IEPA

#3,

4,

23)

Generally

the Agency

is allowed to make determinations

concerning

compliance with the closure assurance

requirements.

An example is the Agency’s determination as to whether an

operator

or

parent

corporation meets a

financial

test

to

guarantee closure ~724,243(f),

These are proper exercises

of the Agency’s authority to review permits

(IPC 25),

The Board proposed a simplified method for closure

assurance as an effort to reduce the cost of compliance with

these

rules,

especially

for

small

business,

The

large

corporations

which commented have objected to

the

simplified

method and raised questions as to statutory authority

(STL

15,

IPC 25, USEPA #37, IEPA #23).

The Board will drop §724.243(j)

from the proposal.

Paragraph

(k) of the proposal will be changed to

(j).

53-176

---

—47—

This deems certain actions of the Agency to be permit modifi-

cations which can be appealed to the Board

(STL 15,

IPC

25,

IEPA #4)

1)

Refusal

to

release

funds

from a closure trust;

2)

An increase in,

or a refusal to decrease the

amount of,

a bond,

letter of

credit

or

insurance;

3)

Deeming a facility abandoned;

4)

Requiring alternate assurance upon a finding that

an owner or operator, or parent corporation, no

longer meets

a financial test.

The Federal rules are vague as to which actions are

appealable.

In the Illinois two agency system this

is

critical.

The

Board

has ‘therefore added to the Federal

rules

to

resolve

-the

ambiguity

in

order

to

make

the

rules

work in Illinois

(STL 15,

IPC 25)

Proposed items

1 and

3, refusal to release funds from a

trust and deeming a

facility

abandoned, relate to the applica-

tion of proceeds to a cleanup,

These

will arise

in

situations

where there is a need

for

quick

action,

These

actions

will

be construed as actions on the bond,

trust agreement or

insurance policy.

The Agency will be free to exercise its

rights under these contracts without necessarily modifying

the

permit.

If,

for example,

an insurance company

refuses

to pay on the policy

when

it

should

under

the conditions of

the

policy,

the

Agency

should sue in the appropriate

court.

Items

1

and

3

will be deleted from the list of

incidents of

appeal

(IEPA

#3,

4).

Items

2

and

4 will he retained,

Agency actions

increas-

ing

the

amount

of

assurance,

refusing to decrease the amount

of assurance

Or

requiring an alternate form of assurance

will have to proceed by way of permit modification with a

possibility of appeal to the Board

(IEPA #4).

The Agency has indicated that

it will promulgate stand-

ardized forms for financial responsibility based on the

Federal forms.

The Board has modified the rules to allow

the alternative use of forms

(IEPA #36).

As proposed §724,243(h) required only that the operator

of multiple facilities provide adequate assurance to close

all of the facilities

in Illinois,

USEPA has indicated that

IllinoIs must require sufficient assurance to

close

all

facilities,

even those located out of state

(USEPA #38),

Thus the failure to provide adequate assurance to close an

out-of—state facility can be a basis for denial of a RCRA

permit by the Agency.

53-177

---

—48—

§724,245

Financial Assurance

for

Post-closure Care (STL 16,

USEPA #32,

28, IPC 27)

The introductory paragraph was modified at 47 Fed, Reg.

32357,

July

26,

1982

(STL 16).

Post—closure financial

assurance

is required of landfills,

and piles

and

surface

impoundments to the extent waste residues will remain after

closure,

The

Board

has

added paragraph

Ci),

concerning appeal,

for the

same

reasons

as

§724,243(1)

(STL 16,

IPC 27),

Section 724,245(h)

has been modified to require post-

closure assurance

of

all

disposal

facilities,

whether

located

inside Illinois or

not

(USEPA

#38)

A

stray

“firia1~’ has

been

deleted

from

§724,245(f)

(11) (A)

(USEPA

#32)

The

text

of

§724,245

was

derived from

§724.243,

which

it

repeats

almost

verbatim,

The

“final”

appears in

§724,243(f) (10) (A)

and

was act deleted

in

the

corresponding

place in §724,245.

Hopefully all of these errors have been

corrected,

§724,247

Liability Requirements

(STL

16,

IPC 28, USEPA #33,

34, IEPA

*11)

40 CFR 264,147(c)

provides

for “variances” which reduce

the level of required liability insurance,

The owner or

operator must demonstrate that the levels of financial

responsibility

required

by

the

rule,

$1

million

for

sudden

and

$3

million

for

nonsudden

accidental

occurrences,

“are

not

consistent

with

the

degree

and

duration

of

risk

associated

with

treatment,

storage

or

disposal

at

the

facility.”

Since

this

involves

no

question

of

haxdship,

the

Board

has

replaced

the

term

“variance”

with

“adjusted

level

of

required

liability

insurance”

to

avoid

confusion

with

hardship

variances

under

Title

IX

of

the

Act

(STL

16,

USEPA

434).

-The

rule

sets

a

standard

which

the

Agency

is

to

apply

to

determine

the

dollar

amount

of

insurance

required,

The

standard

is

cuff icien’tl

spec:Lfic

to

allow

Board

review

should an appeal be filed,

Illinois Power contends that,

apart

from

the specificity

of the standard,

that the determination concerning the

degree and duration of the risk amount to the establishment

of an environmental control standard, a power delegated

exclusively

to

the

Board

(IPC

28),

The Board disagrees.

Determination of the degree and duration of risk is

closely

related

to

the

Agency’s

technical

review of permits.

Note that §724,247(c)

requ.ires “technical and engineering

53-178

---

—49—

information” to justify an adjusted level.

Under this

section the Agency just goes one step further and assigns a

dollar value to the risk.

Because the Board regulation sets a definite amount

which is adjusted,

it would be possible to require variances

from the Board before an adjusted level is granted.

However,

these would be temporary variances requiring a compliance

plan and a showing of hardship.

The Federal rules clearly

contemplate adjustment in the level on a potentially permanent

basis regardless of hardship.

Furthermore, the variance

mechanism could not be used when the Agency seeks an upward

adjustment.

To require Board action would necessitate a

cumbersome site-specific rulemaking, which hardly seems

justified for something which is clearly within the scope of

the Agency’s permit review authority.

There is a question as to whether the Agency’s action

in allowing a reduced level of insurance amounts to a variance

from

the

Board

rule.

The

Board

finds

that

it

is

not.

The

rule could be written with no numbers specified and a require-

ment that the Agency determine the degree and duration of

risk for all facilities.

This would still be well within

the Agency’s authority to review permits and set conditions.

The numerical amounts are presumptive norms which reduce the

amount of information which most applicants have to supply

and reduce the Agency’s workload in most cases:

the applicant

and Agency can accept the figures

in the rule without a

case—by—case determination

(IEPA #11).

Sections 724.247(a) (1) (A) and

(b) (1) (A)

have been

modified to allow the Agency to request a signed duplicate

original of the insurance policy

(USEPA #33).

§724.251

wording of Instruments

(IEPA #36, USEPA #35)

IEPA will promulgate forms based on the USEPA regulations

(IEPA #36).

USEPA has indicated that it will have to review

these with the authorization application

(USEPA #35).

§724.351

Design and Operating Requirements

(waste Piles)

(IPC 29)

Section 724.351(g)

provides that the Agency will specify

all design and operating practices in the permit.

This is

within the Agency’s permit review authority

(IPC 29).

53-179

---

—50—

§724,371

Treatment

Program

(Sludge

Application)

(IPC 31,

IEPA

#37)

Section 724.371 provides

that

the Agency specifies

details of the treatment program

in

the facility permit.

This is

within

the

Agency’s permit review authority

(IPC 31).

§724,378

Unsaturated

Zone

Monitoring

(IPC 31, IEPA #12)

Section 724.371(b)

requires the Agency to prune the

Part

721,

Appendix

VIII

(or

H)

list of hazardous

constituents

to arrive

at

a

list

of

hazardous constituents which

the

treatment

unit must degrade, transform or immobilize.

Section 724,378(a)

requires

monitoring

for these

constituents,

unless the Agency

establishes

“principal hazardous

constituents”

to

be

monitored

in

l:Leu

of

all

constituents.

This

is

within

the

Agency’s

permit

review

authority

~:i~c

31,

IEPA

#12)

§724.401

Design

and

Operating

Requirements

(Landfills)

(IPC 32,

IEPA

*13)

Section 724,401(a)

requires

a

liner

and

leachate

collec-

tion and removal

as the basic design for a landfill with

groundwater monitoring.

As proposed, paragraph

(b) would

allow the Agency

to “exempt” such units from

paragraph

(a)

on a finding that “alternative design and operating practices,

together with location characteristics, will prevent the

migration

of

hazardous

constituents

into

the

groundwater

or

surface

water

at

any

future

time.”

Illinois

Power

contends

that

this

is

the

equivalent

of

setting

an

environmental

control

standard,

a

power

reserved

to

the

Board

(IPC

32).

The Board agrees,

noting

that

the

standard

is

too

general

to

allow

effective

review

in the context of a permit appeal.

The

Board

will require a variance and/or a site specific

rulemaking

for landfills

which

wish

to

deviate from the

basic design and operating rules.

§724,440

Applicability

(Incinerators)

(1PC

34, USEPA #39)

A typographical error has

been

corrected

in

§724.440

(b) (1) (D)

(USEPA #39)

Paragraph

(c)

allows the Agency to “exempt”

the

applicant

from the incinerator operating

rules,

except

for

those

requiring waste analysis and closure, upon a finding that

the waste to

be

burned is listed because it is

ignitable,

reactive or corrosive

(as opposed to ‘toxic)

and that it

contains insignificant concentrations of hazardous constit-

uents listed in Part 721,

Appendix

VIII

(or H).

The Agency

can refuse

the

exemption

if

it

finds

that

the waste will

pose

a

threat

to

human

health

or

the

environment.

(An

apparent

typographical

error

in

the

Federal

standard

has

been

corrected)~,

53-180

---

Illinois Power contends that the determination concerning

human health or the environment is the equivalent

of

estab-

lishing an environmental control standard,

However,

the

primary rule which the Agency

is

applying iS a strictly

technical determination

as

to

whether

the

waste

is

not

listed as a toxic

and

whether

it

~containc

only

insignificant

concentrations

of

hazardous

constituents,

The

threat

to

health or environment

is

a

subsequent

determination

which

just

brings

the full Board

rules

hack into effect.

This Subpart establishes two different regulatory

programs,

one

for

incinerators

burning

toxics,

the

other

for

incinerators

burning

non-’~toxic hazardous

waste.

The

rules

could

be

written

as

two

Subparts,

with

the

Agency

to

decide

which Subpart applied

to

a

given

facility

based

on

the

properties of the waste

to

he

burned,

Instead,

the

rule

is

written

in

one

Subpart,

with

“exemption” from most of

the

provisions

for

incinerators

burning

~ion~toxic

waste,

The

decision

as

to

which

scheme

to

apply

to a given

incinerator

is within the Agency’ s

permit

review

authority,

§724.443

Performance Standards

(IPC

35,

IEPA

#4)

Section 724,443(c)

contains a

formula

for

correction

of

particulate

concentrations

with

respect

to

oxygen

in the

stack

gas.

This

is

mathematically

equivalent

to

the

formula

in 40 CFR 264,343(c),

Subscripts

have

been

eliminated

and

the

formula written

in

linear

form

to

make

it

easier

to

type

and store in

automatic

systems

The

hang~nq paragraph

has

been renumbered

in

accordance

with

codification

requirements

(IPC

35)

Section 724,443(d)

provides

that

the

Agency

may initiate

permit modification

to

chane

the

operating

requirements in

a

permit

if

the

incinerator

fails

to

achieve

99,99

destruc-

tion removal efficiency

of

princiDal

hazardous

organic

constituents.

The

Agency

may

also

seek

revocation

of

the

permit

in

an enforcement

action

(IPPA

#4)

Appendices

to

Part

724

(STL~

:~,

6,

IPc

35,

USEPA

#36)

The

Appendices

will

be

lettered

A

‘through

E

to

conform

with

codification

requirements.

Appendix

D

will

reference

40 CFR

264,

AppendIx

IV

(STL

16,

USEPA

#36)

Ii:Linois

Power

has requested actual

incorporation

by

reference,

However,

this

could be

construed

as

elevating

the

Federal

Appendices

to

the

level

of

State

rules,

As

such,

they

would

enjoy

a

higher

status,

rendering

the

State program less than equiva-

lent

(IPC

35).

53-181

---

—52—

PART

725

INTERIM STATUS STANDARDS

The Board received only a

positive

comment

on

these

amendments

(STL 17).

PART

730

U1C

OPERATING REQUIREMENTS

The

Board

received

no

comments

on

these

amendments,

CONCLUSION

The

Board

will

adopt

Parts

703

and

724,

and

amend

Parts

700,

702,

704,

705,

720,

721,

725

and

730,

modified

in

response

to

comments.

The

adoption

will

be

in

a

separate

Order,

This

Opinion

Supports

the

Board’s

final

Order

of

this date.

It is

anticipated

that actual filing of the rules will

not

occur

for

several

weeks

because

of

the

time

required

to

type

the

modified

text,

and

because

of

review

by

the

Secre-

tary of State’s office for codification approval. Because

there

is a possibility that the Board will have to modify

the text before it is accepted for filing, the appeal period

will not commence until the rules are actually filed.

Because

of its length,

the

text

of

the rules will not

appear

in

the

Opinion

volumes

or

be

mailed

out

to

the

public,

A copy will he placed

in

the

file

and

be

made

available

to

the public for inspection

and

copying.

However,

this Opinion

will appear

in

the

Opinion

volumes

and

will

be

mailed

out.

Board Member Meyer dissents.

I,

Christan

L.

Moffett,

Clerk

of

the

Illinois

Pollution

Control

Board,

hereby

certify

that

the

above

Opinion

was

adopted

on

the

~

day

of

~

1983 by a

vote

of

~

~

~-

I

-

~

Illinois

Pollution

Control

Board

53-182